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CRAIN v. SMALL TUBES PRODUCTS (04/03/73)

decided: April 3, 1973.

CRAIN
v.
SMALL TUBES PRODUCTS, ET AL.



Appeal from the Order of the Court of Common Pleas of Blair County, in case of Robert S. Crain v. Small Tubes Products, Inc., and General Accident Fire & Life Assurance Corporation, Ltd., No. 172 January Term, 1970.

COUNSEL

Robert S. Crain, appellant, for himself.

Neil B. Murchison, with him John F. Sullivan, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 8 Pa. Commw. Page 158]

Robert S. Crain (claimant) was employed by Small Tubes Products, Inc. (employer) when, on October 30, 1958, he injured his back while attempting to lift a large box. As a result of the injury, the claimant and the employer entered into a compensation agreement for total disability. On December 18, 1958, the claimant returned to full time employment with the employer and, thereafter, the parties entered into a supplemental agreement whereby total disability payments were terminated, providing instead that the claimant had a 20% residue disability but that there would be no payment for that residue liability in light of the fact that the claimant was receiving wages equal to or in excess of those earned on October 30, 1958. Compensation was to be suspended so long as the wages earned by the claimant were at least equal to those which he earned at the time of the accident. On October 6, 1959, the claimant was discharged from his employment.*fn1

While still in the employ of the employer, in January, 1959, the claimant had slipped and fallen while

[ 8 Pa. Commw. Page 159]

    getting out of his car on an icy parking lot adjacent to the employer's plant. The claimant had reported the fall to his supervisor and had then gone home. He returned to work the following day and worked regularly until he was discharged on October 6, 1959. Thereafter he began having recurring troubles with his back, which eventually led to surgery. Such surgery revealed that he was suffering from a herniated disc.

On June 26, 1961, the claimant filed a petition to modify the supplemental compensation agreement of 1958, alleging that his 20% partial disability had increased to total disability. The referee refused to modify the agreement because he found that the cause of the claimant's disability was the accident occurring when he fell in January, 1959, and held this to be a new injury in the nature of an accidental aggravation of the pre-existing condition brought about by the injury of October 30, 1958. The petition, therefore, was dismissed by the referee because, even if it were treated as a claim petition for the second accident, it was filed well over 16 months after the accident occurred, in violation of Section 315 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 602. The referee's decision was affirmed by the Workmen's Compensation (Appeal) Board and, subsequently, by the Court of Common Pleas of Blair County.

As this Court has stated many times, our scope of review is limited when, as here, the decision of the Board is against the party having the burden of proof. In such case, our jurisdiction is merely to determine whether or not the findings of the Board are consistent with each other, and with its conclusions of law, and with its order and whether or not they can be sustained without a capricious disregard of competent evidence. Drevitch v. Beverly Farms, Inc., 7 Pa. Commonwealth Ct. 1, 297 A.2d 541 (1972); Bullock v. Building Maintenance, Inc., 6 Pa. Commonwealth Ct. 539, 297 A.2d

[ 8 Pa. Commw. Page 160520]

(1972); Whitehead v. Casey Building Wreckers, Inc., 6 Pa. Commonwealth Ct. 256, 294 A.2d 215 (1972); Pellegrino v. Baldwin-Lima-Hamilton Corporation, 5 Pa. Commonwealth Ct. 150, 289 A.2d 531 (1972); Gayer v. Quaker Hair Goods Company, 5 Pa. Commonwealth Ct. 133, 289 A.2d 763 (1972). And, for the Board to be guilty of capricious disregard of competent evidence, such disregard must have been so flagrant as to be repugnant to a man of reasonable intelligence. ...


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